Citation Nr: 0417711
Decision Date: 07/01/04 Archive Date: 07/14/04
DOCKET NO. 95-35 922 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to an initial evaluation in excess of
10 percent for patellar tendonitis of the left knee.
2. Entitlement to an initial evaluation in excess of
10 percent for cervicodorsolumbosacral strain.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
A. P. Simpson, Counsel
INTRODUCTION
The veteran served on active duty for training from November
1992 to April 1993.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a December 1994 rating decision of the
San Juan, the Commonwealth of Puerto Rico, Department of
Veterans Affairs (VA) Regional Office (RO). The RO granted
service connection for left knee patellar tendinitis and
cervicodorsolumbosacral strain and assigned each a 10 percent
evaluation, effective May 1, 1993. The veteran has appealed
the evaluations assigned.
In February 1998, the veteran testified at a personal
hearing before the undersigned Veterans Law Judge. A
transcript of that hearing has been associated with the
claims file.
In May 1998, the Board remanded the claims for additional
development and adjudicative action. The case has been
returned to the Board for further appellate review.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required on his part.
REMAND
The Board regrets that a remand is necessary in this case.
Section 5103(a), title 38, U.S. Code, as amended by the
Veterans Claims Assistance Act of 2000 (VCAA), provides the
following:
Upon receipt of a complete or
substantially complete application, the
Secretary shall notify the claimant and
the claimant's representative, if any, of
any information, and any medical or lay
evidence, not previously provided to the
Secretary that is necessary to
substantiate the claim. As part of that
notice, the Secretary shall indicate
which portion of that information and
evidence, if any, is to be provided by
the claimant and which portion, if any,
the Secretary, in accordance with section
5103A of this title and any other
applicable provisions of law, will
attempt to obtain on behalf of the
claimant.
38 U.S.C. § 5103(a); see also 38 C.F.R. § 3.159(b) (2003)
(adding an additional duty on VA to request "that the
claimant provide any evidence in the claimant's possession
that pertains to the claim").
In an April 2002 letter, the RO stated that it would inform
the veteran of the "evidence necessary to establish
entitlement to the benefit you want and what information or
evidence we will get for you." However, the letter did not
subsequently inform the veteran of the evidence necessary to
substantiate his claims for increased evaluations for
patellar tendonitis of the left knee and
cervicodorsolumbosacral strain. Thus, the veteran has not
been provided with sufficient notification, as required by
the VCAA, of the evidence necessary to substantiate his
claims for increased evaluations for patellar tendonitis of
the left knee and cervicodorsolumbosacral strain and, in the
same notice, been provided with which information and
evidence he was to provide to VA and which information and
evidence VA would attempt to obtain on his behalf in
connection with his claims for increased evaluations.
38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)
(2003); see Charles v. Principi, 16 Vet. App. 370, 373-74
(2002); see generally Quartuccio v. Principi, 16 Vet.
App. 183 (2002). Additionally, the veteran has not been
requested to provide any evidence in his possession that
pertains to these claims. See 38 C.F.R. § 3.159(b)(1).
Therefore, the Board finds that the veteran must be provided
with the above notices as to his claims.
In the May 1998 remand, the Board noted that an August 1994
VA examination report showed that the veteran had been
hospitalized at the VA Medical Center in San Juan, Puerto
Rico, from May 1994 to June 1994, for suspected cervical cord
compression versus conversion reaction and noted that such
records were not part of the record. The Board requested
that those records be obtained and associated with the claims
file. The record shows that in April 2002, the RO requested
the hospitalization records. When VA records were received,
they were only x-rays of the veteran's left knee and spine.
There is no explanation in the record as to why the 1994
hospitalization records have not been associated with the
claims file. Thus, another request must be made to obtain
these records, and if they cannot be obtained, an explanation
as it their unavailability must be provided.
Furthermore, the veteran's service-connected
cervicodorsolumbosacral strain is evaluated as one disability
under 38 C.F.R. § 4.71a, Diagnostic Code 5295, which
contemplates lumbosacral strain and not a cervical strain.
The Board finds that the symptomatology associated with the
veteran's cervical spine should be rated separately from that
associated with the dorsolumbosacral spine. The Board notes
that the criteria for evaluating spine disorders has changed
during the appeal period. The veteran's claim for an
increased evaluation for the service-connected
cervicodorsolumbosacral spine should be considered under the
amended criteria.
Finally, in the June 2002 VA "neurological disorders"
examination report, the examiner stated the veteran "has
neurological follow-up with an outside community neurologist
in Arecibo, Puerto Rico." The Board finds that such records
should be obtained and associated with the claims file, as
they are possibly relevant to the veteran's appeal.
Accordingly, the case is hereby REMANDED for the following
action:
1. Provide the veteran with the notice
requirements of the VCAA, to include
notifying him and his representative of
any information, and any medical or lay
evidence, not previously provided to the
Secretary that is necessary to
substantiate the claims for evaluations
in excess of 10 percent for patellar
tendonitis of the left knee and
cervicodorsolumbosacral strain and which
information and evidence VA would attempt
to obtain on his behalf. Additionally,
the veteran should be informed to provide
any evidence in his possession that
pertains to the claims.
2. Contact the veteran and ask him to
provide the name and address of any
medical provider who has treated or is
treating him for his left knee and back,
including the name and address of the
neurologist with whom he had a
neurological work-up in Arecibo, Puerto
Rico. Obtain those records and associate
them with the claims file.
3. Obtain copies of VA hospitalization
records from May 1994 to June 1994 from
the VA medical facility in San Juan,
Puerto Rico. If these records cannot be
obtained, an explanation as it their
unavailability must be provided.
4. Readjudicate the claims for increased
evaluations, to include evaluating the
veteran's service-connected
cervicodorsolumbosacral strain as
disabilities of the cervical spine and of
the thoracolumbar spine, under both the
former and the new rating criteria.
5. A remand by the Board confers on a
claimant the right to VA compliance with
the terms of the remand order and imposes
on the Secretary a concomitant duty to
ensure compliance with those terms. See
Stegall v. West, 11 Vet. App. 268, 271
(1998).
The case should be returned to the Board after compliance
with requisite appellate procedures.
The veteran has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_______________________________________
HOLLY E. MOEHLMANN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).